Whither the nation-state law?

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Basic Law: Israel as the Nation-State of the Jewish People (Private Members’ Bill No. 1989/20), which is currently being deliberated on by a joint committee of the Knesset House Committee and the Constitution Law and Justice Committee in preparation for first reading, was first laid on the Knesset table back in the 18th Knesset by MK Avi Dichter (at the time from Kadima and today from Likud) and a long list of MKs from many other parlia- mentary groups.

From the very beginning the bill was the subject of major controversy, giving rise to bitter and acrimonious debate.

The current deliberations, being conducted by the chairman of the joint committee, MK Amir Ohana (Likud), make fascinating reading for anyone wishing to get to the bottom of the issue. To Ohana’s credit it should be said that he has ensured that the voices of MKs and experts from all parts of the political spectrum (though with a noticeable bias toward what I would term the “soft right”) are being heard.

As far as I could discern, except for the appearance of a Shas MK in one of the joint committee meetings, the MKs from the haredi (ultra-Orthodox) parties have deliberately stayed away, apparently due to their objection in principle to the enactment of any additional Basic Laws, for ideological-halachic reasons.

Why has this bill been submitted, what are the reasons for the controversy around it, and what are its chances of being enacted?

The main excuse for the bill being raised is the claim by its supporters that since the passage of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation in 1992 a “constitutional revolution” has taken place, and the High Court of Justice now places greater emphasis on Israel being a democratic state than on its being a Jewish state in its rulings, and that this bias must be redressed.

The opponents of the bill argue that the law is superfluous, since many of its provisions already appear in existing laws. Furthermore, since an overwhelming majority of Israel’s Jewish citizens accept that Israel is the nation-state of the Jewish people as proclaimed in the Declaration of Independence, repeating this proclamation without resolving the status of the national minorities, and without defining “the Jewish people” and their rights in their “nation-state,” and the borders of the State of Israel, which is defined as the nation-state of the Jewish people, merely creates numerous knotty complications that Israel and the Jewish people need at the moment like a hole in the head.

What adds to this opposition is the fact that as currently drafted the law subordinates Israel’s democratic nature to its Jewish nature, downgrades the status of Arabic as an official language (which is currently upheld by article 82 of the Mandatory “King’s Order in Council” which is still in force in Israel), and says nothing about the vested rights of minorities.

An especially bitter debate has evolved about the absence in the bill of the word “equality” with regard to minorities. Reference to equality with regard to minorities appears in the Declaration of Independence, and in the constitutions of all the democratic states that define themselves as the nation- state of only one of the national groups living in them (we are speaking primarily of states that formerly constituted part of the Soviet Union and the communist bloc, and have large national minority groups).

Most of the supporters of Dichter’s bill do not object to the use of the word “equality” on principle, but merely argue that it belongs in Basic Law: Human Dignity and Liberty. They are right, of course, but they deliberately ignore the fact that in the original draft of said law the word appeared, but was removed in order to placate the haredi parties, and convince them not to vote against the law due to their inherent objection to the principle of equality as it applies to men and women.

This was part of the effort by the combination of coalition and opposition MKs (the two most central of them being MKs Amnon Rubinstein [Shinui-Meretz] and Uriel Lin (Likud]) who promoted the bill at the time, to attain broad support for the law – a goal they managed to attain through diligent and sensitive work, despite the fact that they did not have the formal support of the government (we are speaking of Shamir’s narrow government established in June 1990).

However, the significance of the word in the current bill is very different to its significant in the human rights law. The current bill deals with a clear infringement of the equality between the collective rights of the national groups making up the state, and it is consequently vital to balance this by ensuring the personal equality of members of these groups. In the absence of the word appearing in the human rights legislation, it must appear in this context.

In fact, a majority of the opponents of the current bill would be willing to accept a basic law on the subject if the draft being deliberated were the bill submitted by MK Benny Begin (Likud) (Private Members’ Bill No. 1587/20) which states: “1. Israel is the nation-state of the Jewish People, based on the foundations of liberty, justice and peace, and in light of the vision of the prophets of Israel, and upholds the equal rights of all its citizens.

“2. The State of Israel is a democracy [...].”

Even though article 1 is based on the wording of the Declaration of Independence, which is mentioned in a rather convoluted manner in Dichter’s bill, while Israel’s democratic nature is mentioned only indirectly in it, the coalition administration was unwilling to even consider Begin’s version. In fact, one of the reasons Dichter’s bill was not submitted to the Constitution Law and Justice Commit- tee for preparation for first reading (which is where it should have gone) was that Begin is a member of this committee.

Though Begin has appeared before the Joint Committee, he is not a member of it, and he is treated more or less the way the Arab members of the Joint List are – with polite, contemptuous tolerance. Begin’s “crime” is apparently that he represents the liberalism and decency of the old Likud that his father established.

Finally, what are the chances of Dichter’s bill, that is strongly supported by the coali- tion administration and by the prime minister, actually going through three readings and becoming law? Unless aggressive coalition discipline is applied, with a combination of bribes and sanctions, the chances aren’t too good. The numbers simply don’t add up. So why not turn to Begin’s more concise, less objectionable version?

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